Spadaro v. Best Mkt. of W. Babylon 2
Decision Date | 20 March 2019 |
Docket Number | Index 609070/2017 |
Parties | ANNA SPADARO and ANTHONY SPADARO, Plaintiff(s), v. BEST MARKET OF WEST BABYLON 2, INC. and BASSER KAUFMAN 228, LLC, Defendant((s). Mot. Seq. No. 01-Mot D |
Court | New York Supreme Court |
Unpublished Opinion
MOTION DATE 2-15-19.
SUBMIT DATE 3-14-19
LAW OFFICES OF IRA M. PERLMAN, P.C. and ROBERT D. ROSEN, P.C. Attys. for Plaintiff
IACONIS FUSCO, LLP Attys. for Defendant-- BEST MARKET 340 TRINITY PL
MCCARTHY & ASSOCIATES Attys. for Defendan-- NASSER KA URFMAN
Upon the following papers numbered 1 to 22 read on this motion to dismiss/ preclude: Notice of Motion # 1 / Order to Show Cause and supporting papers 1-10; Notice of Cross Motion and supporting papers, ; Answering Affidavits and supporting papers 11-16; Replying Affidavits and supporting papers 17-22; Other _; (and after hearing counsel in support and opposed to the motion) it is, In this action to recover damages for personal injuries allegedly sustained as a result of a trip and fall accident defendant,, Best Market of West Babylon 2, Inc. moves for an order pursuant to CPLR 3126 dismissing the complaint for failure of the plaintiff to respond to discovery; or in the alternative for an order pursuant to CPLR 3126 prohibiting plaintiff from producing or introducing evidence or testimony in support of her position at trial; or in the alternative for an order pursuant to CPLR 3124 compelling the plaintiff to provide the quested discovery by a date certain, Plaintiff opposes this application in all respects.
In support of the instant application defendant claims that on or about December 11, 2018 a post-EBT discovery demand was served upon the plaintiff seeking: (1) a duly executed authorization to obtain Dr. Balot's medical records in connection with Dr. Balots's treatment of the plaintiff and (2) all pleadings, deposition transcripts, medical records and all non-privileged documents in connection with three prior lawsuits commenced by the plaintiff. The three prior lawsuits were: (1) Anna Spadaro and Anthony Spadaro v. The Diocese of Rockville Centre, St. John the Baptist Diocesan H.S. and R.C. School of Dance, under index number 26100/1993; (2)Anna Spadaro v. Angelo G. Ferlito P.C., under index number 27645/2013; and (3) Anna Spadaro v. Stop & Shop, under index number 9138/2014. On January 2, 2019 the plaintiffs' attorney sent a letter objecting to the defendants' post-EBT demands because plaintiff Anna Spadaro did not suffer a shoulder injury in the prior accidents that led to lawsuits and Dr. Balot did not treat her for injuries sustained in this accident. The plaintiffs indicate that the requests are "palpably improper". In response the defendants' attorney sent a letter dated January 23, 2099 indicating that the documents are discoverable under CPLR 3010(a) because the plaintiff has alleged "loss of enjoyment of life" in their Bill of Particular..
A review of the Bill of Particulars evinces that the injured plaintiff placed her entire medical condition in controversy with broad allegations of physical injury and loss of enjoyment of life. The injured plaintiff alleges that she still suffers from "pain, swelling, tenderness and limitation of motion and impairment of functions involving the skin, bones, muscles, cartilage, ligaments, tendons joints, blood vessels lymphatic system, nerves and each and every tissue of the aforementioned affected and surrounding areas"; as well as the necessity of pain medication; the necessity of anti-inflammatory medication undergoing "harmful x-ray and radiological testing"; and the inability to enjoy activities she participated in prior to this accident. The plaintiff claims that "the quality of Plaintiff s life and her ability to enjoy all aspects of her life have been diminished due to the effects of the aforementioned injuries"...
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